Abusive and Offensive Online Communications
We published our Scoping Report on Abusive and Offensive Online Communications on 1 November 2018.
The rise of the internet and social media in recent decades has fundamentally reshaped the way we engage with each other and as a society. This radical shift has brought many benefits, but there are also associated risks and harms, and it has proved challenging for the law to keep pace with this rapidly changing environment.
As part of its efforts to make the UK the safest place online in the world, the Prime Minister announced in February 2018 that the Law Commission was to review the current law around abusive and offensive online communications and highlight any gaps in the criminal law which cause problems in tackling this abuse.
In particular, we were asked to assess whether the current criminal law achieved parity of treatment between online and offline offending.
Our agreed Terms of Reference asked us to consider the applicable criminal law, identifying any deficiencies, focusing on whether the criminal law provides equivalent protection both online and offline. We also considered whether specific groups in society are more vulnerable to abuse than others.
The Government already has active programmes of work in some areas of online communications offences. As a result, the following areas were excluded from the scope of this review: child sexual exploitation online, terrorism offences, liability of social media platforms.
The Scoping Report’s conclusions
We were asked to assess whether the current criminal law achieved parity of treatment between online and offline offending. For the most part, we have concluded that abusive online communications are, at least theoretically, criminalised to the same or even a greater degree than equivalent offline offending. However, we consider there is considerable scope for reform:
- Many of the applicable offences do not adequately reflect the nature of some of the offending behaviour in the online environment, and the degree of harm it can cause.
- Practical and cultural barriers mean that not all harmful online conduct is pursued in terms of criminal law enforcement to the same extent that it might be in an offline context.
- More generally, criminal offences could be improved so they are clearer and more effectively target serious harm and criminality.
- The large number of overlapping offences can cause confusion.
- Ambiguous terms such as “gross offensiveness” “obscenity” and “indecency” don’t provide the required clarity for prosecutors.
Reforms would help to reduce and tackle, not only online abuse and offence generally but also:
- “Pile on” harassment, where online harassment is coordinated against an individual. The Report notes that “in practice, it appears that the criminal law is having little effect in punishing and deterring certain forms of group abuse”.
- The most serious privacy breaches – for example the Report highlights concerns about the laws around sharing of private sexual images. It also questions whether the law is adequate to deal with victims who find their personal information e.g. about their health or sexual history, widely spread online.
Our Scoping report calls for:
- reform and consolidation of existing criminal laws dealing with offensive and abusive communications online;
- a specific review considering how the law can more effectively protect victims who are subject to a campaign of online harassment; and
- a review of how effectively the criminal law protects personal privacy online.
The Department for Digital, Culture, Media and Sport (DCMS) will now analyse the Scoping Report and decide on the next steps, including what further work the Law Commission can do to produce recommendations for how the criminal law can be improved to tackle online abuse.
Other related future Law Commission work
Additionally, the Government has recently asked the Law Commission to consider a broad review of the law of hate crime in England and Wales. Our intention is that some of the observations in this report, such as the role and effectiveness of the law in addressing hate speech, will be addressed further in the context of this separate review.
The Government has also announced we will be reviewing the law concerning the taking and sharing of non-consensual intimate images.
As part of our review, we sought evidence from jurisdictions other than England and Wales to see if any lessons could be learnt for potential reform. Select academics from the following jurisdictions were asked to provide a succinct analysis of the laws governing abusive and offensive communication in their jurisdiction:
The opinions expressed in these works are those of the authors themselves and not the Law Commission.